BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04/11/2006 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE G.RAJASURIA Writ Appeal (MD) Nos.369 of 2006 Writ Appeal (MD) Nos.370 and 386 of 2006 1.Madurai Kamaraj University, rep.by its Vice-Chancellor, Madurai-625 021. 2.The Registrar, Madurai Kamaraj University, Madurai-625 021. ... Appellants 1 and 2 in all the writ appeals. 3.The Selection Committee, Rep.by its Chairperson, The Vice-Chancellor, Madurai Kamaraj University, Madurai-625 021. ... Appellant No.3 in Writ Appeal No.386 of 2006 vs. A.Sundara Mahalingam ... Respondent in all the
writ appeals.
Writ Appeal No.369/2006: Writ appeal under Clause 15 of Letters Patent against
the Order of the learned Single Judge, dated 25.07.2006, made in W.P.(MD)No.3668
of 2006.
Writ Appeal No.370/2006: Writ appeal under Clause 15 of Letters Patent against
the Order of the learned Single Judge, dated 25.07.2006, made in
W.P.(MD)No.11053 of 2006.
Writ Appeal No.386/2006: Writ appeal under Clause 15 of Letters Patent against
the Order of the learned Single Judge, dated 22.09.2006, made in W.P.(MD)No.7880
of 2006.
!For Appellants in ... Mr.R.Muthukumarasamy, all the appeals ... Senior counsel for Mr.S.Sethuraman ^For Respondent in ... Mr.S.Natarajan all the appeals :COMMON JUDGMENT G.RAJASURIA,J
A resume of the previous proceedings, as stood exposited from the
records, could be portrayed thus:
(a)Sundara Mahalingam, an official of Madurai Kamaraj University,
the respondent in the appeals, was working on the administrative side of the
Madurai Kamaraj University for a pretty long time and ultimately he rose to the
level of Superintendent-I. He acquired Ph.D. qualification during the year
1992. It appears, he wanted to be a faculty in Madurai Kamaraj University i.e.,
the appellant University, by switching over from administrative side to academic
side. Since he experienced some difficulty in getting himself inducted as a
faculty member, he filed the writ petition in W.P.No.2197/2001 with the
following prayer:
“…. to issue a writ of certiorarified mandamus by calling for the
records of the respondents relating to the selection in pursuance of the
notification No.R-34VC/2000 and R/37/VC/2001 issued by the second respondent
21.12.2000 and 11.1.2001 published in Indian Express dated 26.12.2000 and
16.1.2001 respectively in so far as the School of Energy is concerned and quash
the same and consequently direct the respondents to absorb the petitioner in the
post of Lecturer in Bio-Energy, Department of School of Energy, where he is
already working, as provided by the Syndicate resolution dated 4.3.96 and the
memorandum of agreements dated 7.4.89 and November 1999.”
(b)In the course of hearing in the above writ petition, it appears
that the learned counsel who appeared for the University made submission, which
was recorded by the Court, and it runs thus:
“…. Learned counsel appearing for the University would submit that if
the writ petitioner gives a representation seeking the relief of absorption and
if he satisfies the UGC norms (UGC prescribed norms for such posts), then, the
University will have no difficulty at all in absorbing the writ petitioner. …”
Ultimately, on 12.09.2005, the Court in the said writ petition ordered thus:
“Validity of the advertisement is not gone into, since it is withdrawn.
the writ petitioner is permitted to give a representation to the University
seeking absorption in the post mentioned above. If the writ petitioner
satisfies the norms prescribed by the UGC for the said post, the respondents,
who have told this Court by their learned counsel, would consider the said
representation and pass orders on it, in any event, not later than 30 days from
the date of receipt of such representation. If the writ petitioner is aggrieved
on the order directed to be passed by the University, it is open to him to
approach the competent forum for appropriate relief.”
(c)It appears, the University sent the communication, dated
31.10.2005, calling upon the respondent to attend an interview before the
Selection Committee for the post of Lecturer in the Department of Bio-Energy,
School of Energy, Environment & Natural Resources at 11.30 a.m. on 11th
November, 2005 at the Syndicate Room, Madurai kamaraj University. However, the
respondent absented himself from attending the said interview, even though he
was the only candidate called upon to attend the interview for the above said
post. Thereupon, the University by its communication, dated 16.11.2005,
rejected the representation of the petitioner, dated 05.10.2005, to absorb him
in the academic side as a Lecturer. Obviously, the respondent filed writ
Petition (MD)No.11053/2005 with the following prayer.
“… to issue a writ of certiorarified mandamus or such other writ,
direction or order in the nature of writ by calling for the records of the
respondents relating to the impugned order passed by the 2nd respondent in Memo
No.MKU/LC/Estt.Case/2005, dt.16-11-2005 and quash the same and consequently
direct the respondents to pass suitable order for absorbing the petitioner as
Lecturer, ont he representation given by the petitioner dt.05-10-2005, as
directed by this Hon’ble Court in W.P.No.2197/2001 dated 123.09.2005 ….”
(d)Subsequently, the respondent Sundara Mahalingam also filed one
other writ petition in W.P.(MD)No.3668 of 2006 with the following prayer.:
“…. to issue a writ of certiorari or such other writ, direction or order
in the nature of writ by calling for the records of the respondents relating to
the impugned notification dated 21.07.2006 issued by the second respondent as
published in the Newspaper New Indian Express dated 01.02.2006 and quash the
same in so far as the posts covered in S.No.1, 2, 3 and 4 ….”.
(e)Thereupon, both the writ petitions, namely W.P.(MD)Nos.11053/2005
and 3668/2006 were taken up for hearing by the learned Single Judge and passed
the common order on 25.07.2006. The operative portion of it runs thus:
“14.In view of the above facts and circumstances of the case, both the
writ petitions are ordered in the following terms:
1.The respondent University shall constitute the Selection Committee in
accordance with the norms prescribed by U.G.C. within a period of 15 days from
the date of receipt of a copy of this order;
2.The writ petitioner is directed to appear before the Selection
Committee, to be constituted by the respondent University, for the post of
lecturer in Bio-Energy Department;
3.The Selection Committee shall consider the qualification and other
eligibility criteria of the petitioner for the post of lecturer in the
department of Bio Energy by taking into consideration the order passed by this
Court in W.P.No.2197 of 2001 dated 12.09.2005 and also the other qualifications
and expertise acquired by the petitioner in the teaching side from the year 1997
to ill date in the department of Bio Energy and recommend for appointment on
such compliance;
4.The impugned notification dated 27.01.2006 issued by the respondent
University in so far as it relates to Sl.No.2, Advertisement No.R/84/Dean (E&D),
Bio-Energy Department for the post of lecturer alone is set aside.”
(f)Being aggrieved by the said common order, the University filed
Writ Appeal Nos.369 and 370 of 2006. However, even before the filing of the
writ appeals by the University as aforesaid, the respondent Sundara Mahalingam
filed another writ petition in W.P.No.7880/2006 with the following prayer.
“…. to issue a writ of certiorarified mandamus or such other writ,
direction or order in the nature of writ by calling for the records relating to
the impugned proceedings of the Madurai Kamaraj University as issued by the
2nd respondent in ref.No.Memo.No.MKU/VC/ Lect.Appt./2006 dated 28.08.2006 and
quash the same and issue suitable directions to absorb in the post of lecturer
with back wages and all service benefits …..”.
The learned Single Judge on 22.09.2006 passed orders allowing the writ petition
by observing and directing as follows:
“8.Therefore the non-selection of the petitioner on the ground that he has
not answered the questions during the interview cannot be a valid reason in the
facts and circumstances of this case, particularly when the petitioner is aged
57 years and has been working as Lecturer in the Department of Bio-Energy from
22.7.1997, without any complaint or deficiency in conducting classes. Even in
the counter affidavit nothing is stated about the performance of the petitioner
in the Department of Bio-Energy. hence the impugned order is declared as
illegal.
9.In the result, the writ petition is allowed as prayed for. the impugned
order is quashed and the respondents are directed to absorb the petitioner as
Lecturer as he is fully qualified to hold the post of Lecturer as per the UGC
norms. Orders to the above effect shall be passed by the second respondent
within a period of eight weeks from the date of receipt of copy of this order.
…”
(g)Aggrieved over the said order, the University also filed
W.A.(MD)No.386 of 2006. As such, before this Bench, three writ appeals, namely,
W.A.(MD)Nos.369, 370 and 386 of 2006 are pending.
2.Heard both sides in entirety.
3.The nitty-gritty, the gist and kernel, the warp and woof of the
case of the respondent Sundara Mahalingam is to the effect that he should be
absorbed as such without he being tested relating to his suitability, namely
(a)aptitude for teaching and research.
(b)Ability to communicate clearly and effectively.
(c)Ability to analyse and discuss.
4.Per contra, the University would contend that adherence to U.G.C.
norms includes testing the respondent Sundara Mahalingam’s aforesaid three
qualities also.
5.Hence, in these circumstances, the following point arises for
consideration.
whether the respondent could be absorbed as such without being tested
relating to his aptitude for teaching and research, ability to communicate
clearly and effectively and ability to analyse and discuss, for the post of
lecturer?
6.The main thrust of the argument of the learned Advocate appearing
for the respondent is to the effect that the University is estopped from
conducting interview so as to test the respondent’s aptitude for teaching and
research, ability to communicate clearly and effectively and ability to analyse
and discuss, in view of the learned Advocate for the University having submitted
before this Court in W.P.No.2197/2001 to the effect that the respondent herein
would be absorbed if he would be found satisfying the UGC norms and that the
University would have no difficulty at all in absorbing him; for which, the
learned senior counsel appearing for the University would submit that the
operative portion of the order of this Court, dated 12.09.2005, passed in
W.P.No.2197/2001 would in no way states so and that the respondent should
satisfy all the UGC norms, including the interview meant for testing the
aptitude for teaching and research skill, ability to communicate clearly and
effectively and ability to analyse and discuss.
7.The perusal of the order of the learned Single Judge, dated
12.09.2005, in W.P.No.2197 of 2001, would show that the said order did not give
any carte blanch to get himself absorbed in the post of lecturer merely by
producing his educational credentials. The said order would contemplate that
the respondent herein should satisfy the UGC norms and subject to that alone he
could be taken as lecturer by the University. It is quite obvious that the
University is governed by the mandates of the University Grants Commission and
it cannot opt out of it. At this juncture, it is worthwhile to refer to the UGC
norms, which are available in the typed set of papers and an excerpt from it is
extracted herein for ready reference.
“The process of selection should involve the following:-
a)Assessment of aptitude for teaching and research.
b)Ability to communicate clearly and effectively.
c)Ability to analyse and discuss.
d)Optional: Ability to communicate may be assessed by requiring the
candidate to participate in a group discussion or by exposure to a class room
situation/lecture, wherever it is possible.”
8.The unassailable and indubitable fact is that the Selection
Committee, as per UGC norms should comprise of high level academicians and the
selection committee for the post of University Lecturer should be on the
following pattern.
“At the University level, all selections must be done within the system
with the Vice Chancellor as the Head of the Selection Committee.
1.The Vice Chancellor to be the Chairperson of the Selection Committee.
2.Three experts in the concerned subject to e invited on the basis of the
list recommended by the Vice Chancellor and approved by the Executive
Council/Syndicate.
3.Dean of the concerned Faculty/ Head/Chairperson of the Department.
4.An academician nominated by the Visitor/Chancellor.
The quorum should be four, out of which at least two outside subject
experts must be present.”
9.The detailing and delineation of the facts in the previous
proceedings before the learned Single Judges would express and expatiate that
even though the respondent initially refused to participate in the interview,
subsequently he participated in the interview but he objected for questions
being put to him by the Selection Committee. His bone of contention is that the
selection committee was competent only to verify his documents containing his
qualifications and nothing more. The core question arises as to why for
verifying certificates and degrees, such a high level selection committee should
be constituted at all and it is quite obvious that such verification of the
certificates, is only a clerical job. The term ‘UGC norms’ connotes, the
‘entire UGC norms’ prescribed for selection. The respondent herein cannot call
upon the Court to truncate the procedure to his own benefits and apply only a
part of the UGC norms and leave the rest. The perusal of the UGC norms would
leave no doubt in the mind of the Court that such norms are meant for recruiting
really worthy personnel as lecturers in the University and necessarily
suitability should be tested by adhering to the process contemplated in the UGC
norms by the Selection Committee for selecting any one for the post of lecturer.
10.The respondent herein would project himself as an experienced
person in the academic field by contending that he was virtually transferred
from the administrative side of the University to the academic side and work
was extracted from him as Lecturer for a pretty long time and that it was too
late in the day as well as an after thought on the part of the University, in
veering round and taking pleas quite antithetical to such realities and contend
as though the respondent should undergo suitability test as per UGC norms. To
buttress and fortify, to support and strengthen his contention, he would rely on
the Memorandum No.177/Estt./1/Dt.30.05.1997 of the University, which forms part
of the typed set and demonstrates that various administrative officials were
posted on the academic side and also the Memorandum No.Estt./Admn./1/97, dated
22.07.1997, would read that the respondent herein, who was working at thattime
as Superintendent (D), Demand Draft Section, was transferred to the Department
of Bio-Energy, School of Energy, Environment and Natural Resources. The scrutiny
of the memorandum, dated 22.07.1997, would show that the respondent herein was
directed to work under the directions of the Head of the Department concerned.
It is pertinent and relevant to note that the said communication in no way
appointed the respondent herein as lecturer in the Department of Bio-Energy,
School of Energy, Environment and Natural Resources. But, it only mandated that
he should work under the directions of the Head of the department concerned.
11.During arguments it transpired that despite such transfer the
respondent herein was not paid salary on par with lecturers, for which the
learned counsel appearing for the respondent would try to expound and explain,
that for such non-extension of lecturers’ pay scale to the respondent, he cannot
be found fault with. It is not the question of quantum of money that matters
but the circumstances would matter much. Had really the respondent herein been
appointed as lecturer or treated as lecturer, he would have been placed in the
scale of pay of lecturer. The very fact that the respondent did not insist for
the lecturer scale and that the University also did not place him in the
lecturer scale, would speak volumes that he was simply transferred from the
administrative side to the academic side with no assurance that he would be
absorbed automatically by considering only his educational qualifications.
12.During arguments it also came to limelight that it has become a
trait proposition of law that whenever any such post is lying vacant, it should
not be filled-up by way of an internal selection, as that would offend the
rights of the outsiders who are fully qualified and suitable to occupy such
posts. Be that as it may, at this stage, we do not want to ponder over that
point as much water has flown under the bridge and at present the factual
position here is that the University has decided to conduct interview only for
the respondent herein. But the University simply and solely, primarily and
paramountly insist that the respondent should satisfy the suitability test as
contemplated under the UGC norms set out supra. The learned Advocate for the
respondent would try to carry conviction with this Court by his persuasive
argument relating to his plea that such interview would be an empty formality
and in all probabilities the respondent would be rejected as unsuitable in view
of the respondent having engaged himself in litigative battle with the
University all along. The learned senior counsel for the University would
correctly torpedo such argument by stating that the University is, day in and
day out, facing all such sort of litigations and they in no way were perturbed
or prejudiced by the litigations initiated by the respondent herein as against
the University. We are of the opinion that simply because the respondent herein
waged a litigative battle as against the University, which had temporarily made
it to meet with its waterloo, there is no presumption that the University
authorities would bear grudge as against their own staff, the respondent herein,
if he is otherwise suitable for the post of lectureship. We also specifically
record herein that the University authorities shall deal with the respondent
with open mind. More over, the selection committee comprises
of various academicians from outside the University also. Hence in this view of
the matter, the contention raised on the side of the respondent cannot be
countenanced.
13.The learned Single Judge in the common order, dated 25.07.2006,
would consider that the respondent herein is working on the teaching side in the
Department of Bio-Energy and that he possesses all the required qualifications
for appointment as a lecturer which job he has been doing ever since 1997 and
accordingly treated his case as an “individual case and cannot be clubbed with
any other regular appointment to be made for the post of lecturer in the
University”. We are not in agreement with the said finding for the reason that
there is absolutely no basis for treating his case as an ‘individual case’.
The Court cannot mandate the University to treat any case as an ‘individual
case’ when the UGC norms, without mincing words by its directions, contemplate
that any one who would be appointed as lecturer should satisfy the suitability.
The learned Single Judge concentrated only on the qualification of the
respondent but not the suitability which the Court cannot assess but only the
Selection Committee by putting questions could and should assess the aptitude
for teaching and research, ability to communicate clearly and effectively and
ability to analyse and discuss, of the candidate.
14.Similarly, the learned Single Judge in the order dated 22.09.2006
in Writ Petition No.7880/2006, following the common order dated 25.07.2006
passed in the previous proceedings by the earlier learned Single Judge, felt
that such an order of the Court should be implemented because there was no
appeal against the order, dated 25.07.2006. Now then, the University filed two
appeals, namely W.A.(MD)NOs.369 and 370 of 2006, challenging the common order
dated 25.07.2006 and in such view of the matter, the subsequent order dated
22.09.2006, which reiterates the previous order, dated 25.07.2006, cannot held
to be having any independent approach to the problem. In fact, the learned
Single Judge, in the order dated 22.09.2006 went to the extent of mandating as
under.
“…. the respondents are directed to absorb the petitioner as Lecturer as
he is fully qualified to hold the post of Lecturer as per the UGC norms. Orders
to the above effect shall be passed by the second respondent within a period of
eight weeks from the date of receipt of copy of this order. ….”
The aforesaid extract of the order would tantamount to issuing appointment order
itself by the Court, which, in catena of decisions, the Hon’ble Supreme Court
does not confirm.
15.On the appellants’ side, the decision of the Hon’ble Apex Court
reported in (1998) 6 SCC 538 (Uptron India Ltd. vs. Shammi Bhan and another)
has been cited to highlight the point that wrong concession made by counsel on a
question of law would have no binding effect on his client. Our discussion
supra relating to the order of the learned Single Judge in W.P.No.2197 of 2001,
dated 12.09.2005, would show that in fact there was no concession given by the
learned counsel for the University and the court also did not act upon it, but
the court order is clear to the effect that UGC norms should be adhered to. As
has been correctly highlighted in the Hon’ble Apex Court’s judgment referred to
above, even for any reason such representation before the learned Single Judge
has to be treated as a concession given by the learned Advocate for the
University, yet it would not bind the University.
16.The learned Advocate for the respondent herein would cite the
decision of the Hon’ble Apex Court reported AIR 1979 SC 681 (M.P.Sugar Mills v.
State of U.P.) so as to stress upon the point that doctrine of promissory
estoppel would be operative even as against the University. To the risk of
repetition, we would highlight that by making representation before the learned
Single Judge in W.P.No.2179/2001, the learned Advocate for the University did
not usher in the doctrine of promissory estoppel in favour of the respondent.
The litigation already started between the respondent herein and the University,
long before such representation, alledgedly imbued with concession. In such a
case, by no stretch of imagination or any presumption or assumption, the
principle of estoppel could be pressed into service by the respondent herein.
In the typed set of papers as well as from the arguments advanced by the learned
Advocate for the respondent herein, we could see no law, rule or regulation in
support of the respondent that on his possessing certain educational
qualifications to become a lecturer, he should necessarily be absorbed as a
lecturer.
17.Hence, in this view of the matter, all the three writ appeals are
allowed and common order, dated 25.07.2006, passed in W.P.(MD)Nos.11503/2005 and
3668/2006 and the order dated 22.09.2006 passed in W.P.(MD)No.7880/2006 are set
aside. Connected M.P.(MD)No. 2 of 2006 in W.A.(MD)No.370/2006 and M.P.(MD)No.1
of 2006 in W.A.(MD)No.386 of 2006 are closed. However, during arguments, we
sensed that the University is even now willing to constitute a Selection
Committee so as to enable the respondent herein to appear before it so that he
could prove his suitability by answering the questions that would be put to him
by the experts of the Selection Committee. Hence, we are of the opinion that
considering the over all circumstances involved in this case, the respondent
could be given one more opportunity of appearing before the Selection Committee.
With this in mind, we direct that the University shall make arrangements for the
constitution of the Selection Committee, which shall, strictly in accordance
with the UGC norms, test the suitability of the respondent by putting
appropriate questions, for which the respondent herein is bound to answer. We
also stress that the University shall deal with this matter with open mind
untrammeled by the bitter experience, if any the University had in view of the
litigation initiated by the respondent herein as against the University.
18.In the facts and circumstances of the case, the parties shall
bear their respective costs.
gb.
To:
1.The Vice-Chancellor,
Madurai Kamaraj University,
Madurai-625 021.
2.The Registrar,
Madurai Kamaraj University,
Madurai-625 021.